Collins Bey, Robert v. Haines, Tim et al

Filing 26

ORDER setting briefing on plaintiff's motion for preliminary injunctive relief. Plaintiff's supporting materials are due May 12, 2014. Defendants mayhave until May 26, 2014 to file their opposition. The caption is amended to remove the John Doe defendants and add Tom Boston. Defendant Gary Boughton is added to the case as a defendant for purposes of plaintiff's request for injunctive relief. Signed by Magistrate Judge Stephen L. Crocker on 4/28/2014. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________________
ROBERT L. COLLINS BEY,
ORDER
Plaintiff,
v.

13-cv-618-bbc

TIM HAINES, et al.,
Defendants.
__________________________________________________________________________________________
In this case, plaintiff Robert L. Collins Bey, an inmate housed at the W isconsin Secure
Program Facility, is proceeding on Eighth Amendment deliberate indifference and state law
negligence claims regarding defendant prison officials' alleged failure to provide him with adequate
dental care. Briefing had been set on plaintiff's motion for preliminary injunctive relief, but the
briefing deadlines have passed without plaintiff filing any proposed findings of fact as required by
this court's procedures. As I stated in a March 21, 2014 order, the reason for this seemed to be a
dispute between the parties regarding plaintiff's dental records.
In that March 21 order, I denied the parties’ discovery motions, stating as follows:
I will deny both motions. First, plaintiff should rest assured that he
is entitled to see his entire dental file, not only because they are his
own medical records, but also because they highly relevant to
plaintiff’s claims in this case. I do not understand defendants to be
arguing otherwise. To the extent that plaintiff believes that he has not
been provided with his entire dental file, he is free to file a motion to
compel discovery of that information, but he will have to explain what
it is he thinks is missing.
As for defendants’ motion, the court will not force plaintiff to review
his records and it will not force plaintiff to permit defendants to view
them. However, if plaintiff chooses not to do these two things, then
his choices could result in dismissal of his lawsuit. This is because
defendants likely cannot defend against plaintiff’s claims without
having access to plaintiff’s dental records. If plaintiff wishes to pursue
this lawsuit, then he should promptly examine the records provided
and authorize release of relevant records to defendants. Once these

discovery issues are ironed out, the court can set a new schedule on
briefing the preliminary injunction motion.
Dkt. 24.
Now plaintiff has responded to the order, stating that he signed an authorization form after
being given a chance to view his records, although he seems to think that there were documents
missing from the file. Plaintiff states that he is “submitting a motion to the court to compel
discovery of information.” It is unclear whether he considers his response to the order itself to be
the motion to compel or whether another document is forthcoming, but the current document is
nowhere close to containing the information necessary for a successful motion to compel. It does
not explain what information he wants, nor does it explain what steps he has taken to work with
defendants to obtain the information. As such, there is no reason for the court to even treat it as
a motion.
If plaintiff thinks that defendants are withholding information from him, he may file a
motion to compel discovery but will have to explain in detail what information he seeks. To head
off a possible argument by plaintiff that the dental records he has seen are not all of his dental
records, I note that defendants are on notice that they must provide plaintiff with all of this
information.
If plaintiff is trying to recover documents that he believes are missing from the record,
defendants may not be able to comply with his request, as they cannot turn over what they do not
have. At this point I do not see any reason in delaying briefing on plaintiff’s preliminary injunction
motion any further. Accordingly, I will set a new briefing schedule in the order section below.
Also in his response, I understand plaintiff to be saying that he would like to add the new
warden at WSPF, Gary Boughton, to his complaint for the purposes of bringing substantive claims

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against him as well as including in his claims for injunctive relief. The court already allowed plaintiff
to proceed against the previous warden, Tim Haines, in his official capacity for purposes of granting
injunctive relief. Boughton may be substituted for Haines on this claim, although Haines will remain
in the case regarding plaintiff’s substantive allegations. To the extent that plaintiff wants to bring
substantive claims against Boughton for his alleged role in denying plaintiff treatment, he may
attempt to do so by filing a supplement to his complaint under Fed. R. Civ. P. 15(d).
Finally, plaintiff appears to have ascertained the identities of Doe defendants “Dr. Steve” and
“Dr. John Doe.” Plaintiff states that “Dr. Steve” is actually defendant James Steven W ommack and
that “Dr. John Doe” is Dr. Tom Boston. Accordingly, the caption will be amended to remove the
Doe defendants and add Boston. The state should indicate whether it accepts service of behalf of
defendant Boston and, if so, file an answer under the terms of the January 23, 2014 preliminary
pretrial conference order.
ORDER
It is ORDERED that
(1)

Briefing is set on plaintiff Robert L. Collins Bey’s motion for preliminary
injunctive relief as follows: plaintiff may have until May 12, 2014 to file his
brief, proposed findings of fact and supporting evidence. Defendants may
have until May 26, 2014 to file their opposition materials.

(2)

The caption is AMENDED to remove the John Doe defendants and add Tom
Boston.

(3)

Defendant Gary Boughton is added to the case as a defendant for purposes
of plaintiff’s request for injunctive relief.

Entered this 28 th day of April, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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